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EARLY
COURTS AND ELECTIONS All that territory from the
Ottawa River to the Detroit, in which the Loyalists settled, inclusive of the
western bank of the latter river, was, of course, part of the Province of
Quebec; but there was very little in common between the newly-arrived
settlers and their French neighbours on the lower St. Lawrence. There were no
judges, no lawyers, and no regularly established courts in any of the new
settlements. The people were too busy to devote much time to litigation. The
nearest court was at Montreal, and to the English-speaking settlers the
French civil code, which was in force, was an untried experiment, and they
wisely endeavoured to avoid making use of the legal machinery at their disposal.
Minor differences were frequently referred to some of the officers who had
been appointed to take charge of the bands of emigrants when they left their
former homes. These officers did not profess to be versed in the law, but
they had exercised a certain amount of authority during the voyage and in
locating the families committed to their care, and in distributing the
supplies. It was quite natural that they should be appealed to when the
parties to a dispute were unable to come to a satisfactory understanding
between themselves. They were not hampered by hair-splitting precedents or
long-established forms of procedure; but they made the best use of their
common sense in their efforts to apply the Golden Rule, and so far as is
known, substantial justice was done. As early as 1785, indeed, the Justices
of the Peace were given jurisdiction in civil cases up to £5 ($20); but
they had little to do, and their courts were very informal. On the 24th of July, 1788, Lord
Dorchester, Governor of Quebec, issued a proclamation dividing the
newly-settled territory into four districts as follows: Lunenburg, composed
of all that portion east of the Gananoque River; Mecklenburg, from Gananoque
to the Trent; Nassau, from the Trent to a line running north and south through
the extreme projection of Long Point into Lake Erie; and Hesse, that portion
of the province west of the last mentioned line. There was established in
each district a Court of Common Pleas of unlimited civil jurisdiction,
presided over by three judges (except in Hesse, where one judge only was
finally appointed), attended by a sheriff and the other necessary officers. In naming the first judges to
serve in the newly-established courts, Lord Dorchester selected men of
well-known probity from different walks of life, regardless of their
experience in courts of law. At the same session, there was
passed an Act for establishing Courts of Request for the recovery of debts up
to forty shillings, whereby it was declared to be lawful for any two or more
Justices of the Peace, acting within the respective limits of their
commissions, to hold a court of justice on the first and third Saturdays of
every month at some place fixed within their respective divisions, for the
purpose of adjudicating upon these small claims. It was essentially a
justices' court. They appointed their own officers, devised their own forms,
and laid down their own method of procedure. These courts afforded the
magistrates an opportunity of appearing upon the bench and taking part in
judicial proceedings, without calling for the exercise of any superior legal
knowledge. This was a privilege which many of them greatly enjoyed and of
which they took full advantage, as is shown by the fact that as many as ten
have been known to preside at a sittings, although only two were necessary. *I
find upon an examination of the records of the Court of Requests, held at
Bath, covering a period of eight years from 1819, that rarely were there less
than four justices present, frequently there were more than that number, and
at the four sessions of March and April, 1827, there were seven, ten, six and
eight, respectively. There were no court houses at
the disposal of the justices when the Act first came into force, and only one
in each district when buildings were afterwards erected; so they were forced
to hold their courts in private residences, taverns, or any convenient room
that could be secured. When we endeavour to picture a row of justices behind
a deal table across the end of a low-ceiling kitchen, crowded with litigants,
any preconceived notions of the dignity of the Court of Requests are speedily
dispelled. In 1816 the jurisdiction of the
Court of Requests was extended to claims of £5, where the amount of the
indebtedness was acknowledged by the signature of the defendant, or
established by a witness other than the plaintiff. It did not take the
merchants long to discover that it was greatly to their advantage, in more
ways than one, to take from their customers promissory notes in settlement of
their accounts; for by thus obtaining a written acknowledgement of the debt,
an action for the recovery of the amount within the increased jurisdiction
could be brought at a trifling expense in this court. By another Act of 1792, the German
names of the four districts were changed respectively to the more acceptable
English ones, Eastern, Midland, Home, and Western; and provision was made for
the erection of a gaol and court-house in each of them. Before these very
necessary public buildings were erected, even the higher courts were held in
cramped and uncomfortable quarters. It is said that the first sentence of
capital punishment imposed in Upper Canada was pronounced in a tavern on the
shore of the Bay of Quinte at Bath, and, as summary execution was the
recognized method of carrying into effect the judgment of the court, the
convict was immediately hanged to a basswood tree on the roadside, only a few
rods distant. The pathetic part of this tragic incident is that it was
afterwards learned that the poor victim was innocent of the charge of which
he was found guilty, the theft of a watch. Such a stigma attached to this
particular basswood tree that it was adopted and used for years as a public
whipping post. *This incident was, I believe, first published by Dr.
Canniff in 1869 in his Settlement of Upper Canada. I am unable to point to
any official record bearing out his statement; but up to a few years ago old
residents, including descendants of the tavern-keeper, told the story and
evidently believed it. In the early courts the parties
before them were occasionally represented by counsel; but the only recognized
standard of admission to the bar was under an ordinance of the old Province
of Quebec, and few were called. Under such conditions it can readily be
conceived that it would be difficult to maintain any uniformity in the
practice. In 1794 the Legislature empowered the governor,
lieutenant-governor, or person administering the affairs of the province, to
"authorize by license, under his hand and seal, such and so many of His
Majesty's liege subjects, not exceeding sixteen in number, as he shall deem
from their probity, education, and condition in life best qualified, to act
as advocates and attorneys in the conduct of all legal proceedings in the
province." In 1803 the demand for lawyers had become so pressing - at
least so it was alleged - that an Act was passed making it lawful to add in a
similar manner six more practitioners to the roll. Neither of these Acts
called for any educational test or professional experience. It is therefore a
matter of surprise to learn that the gentlemen of the long robe, who were
thus admitted to the bar, were sometimes alluded to as "heaven born
lawyers", though some of them were of the highest standing, one becoming
a judge of the King's Bench, another treasurer of the Law Society. The Law Society of Upper Canada,
which has now its headquarters at Osgoode Hall, Toronto, may properly be
classed among the pioneer institutions of the province. It came into being
under the provisions of a statute of 1797, which made it lawful for all
persons then practising at the bar to form themselves into a society, under
the name which it still retains. The declared purpose of the society, in
addition to caring for the needs of the legal profession, was "to
support and maintain the constitution of the said province." It was
created a body corporate by an Act of 1822, and its affairs are administered
to-day upon somewhat the same lines as those upon which it was first formed. Before the arrival of Governor
Simcoe, many of the communities had organized their town meetings and
appointed their local officers, such as clerks, constables, and overseers of
highways. The provisions of the first statute authorizing such meetings were
based upon the organizations already in existence, so that the idea of local
self-government did not originate with the Legislature. Parliament merely
legalized and made general throughout the entire province the holding of just
such town meetings as had already been organized in many of the older
townships. *For instance, the town meetings of the township of Sidney date
from 1791, and those of Adolphustown from 1792, although the statute
authorizing them was not passed until July, 1793. It is no particular mark of
superiority to-day to be enrolled as a Justice of the Peace. Not so in the
early days of Upper Canada. The humblest citizen may now in correspondence be
addressed as "Esquire"; but, a hundred years ago, all hats were
doffed when the "Squire" passed through the streets of a village.
He was a man of some importance. He tried petty offences in his own
neighbourhood; as a member of the Court of Requests, minor civil actions were
heard by him; but, as a member of the Court of General Sessions, he rose to
his greatest dignity. This body of justices, assembled in General Sessions,
not only disposed of criminal cases, except those of the gravest kind, but
were clothed with executive power as well. They enacted local legislation for
the districts which they represented, they levied and disbursed the taxes,
granted licenses, superintended the erection of court houses and gaols, the
building of bridges, and generally performed the functions of our municipal
councils of to-day. They met periodically in the leading village of the
district and sometimes remained in session for a week, and, considering the
amount of business they transacted, they were very expeditious, as compared
with the modern county council. Few would gainsay the statement, if I were to
add that the municipal legislators of to-day frequently do not, in many other
respects, attain the standard of a hundred years ago. The town meetings continued to
meet once a year on the first Monday in March, to appoint officers, and,
although they had no jurisdiction to do so, to pass, repeal, and amend
enactments for purely local purposes. These "Prudential Laws", as
they called them, regulated such matters as the height of fences, the running
at large of certain animals, and the extermination of noxious weeds. The
people favoured the town meeting, as it was of their own making. It was the
first step in democratic government by and for the people. The chronic
grumbler found there an opportunity to air his grievances. The loquacious
inflicted his oratory upon his assembled neighbours. Each man to his liking
played his part at the annual gathering, and realized that he was of some
consequence in controlling the affairs of the township. Thus did the
inhabitants continue to encroach upon the authority of the Justices in
Session, who from time to time issued their decrees, dealing with some of the
matters over which the town meetings had assumed jurisdiction, until 1850,
when our present municipal system was introduced and the justices were
practically shorn of all but their judicial power. Parliamentary elections to-day
are very tame affairs compared with those of a century ago. The open vote
afforded opportunities for exciting scenes that the rising generations know
not of. The closing of the bars on election day has robbed the occasion of a
good deal of romance. The actual voting contest is now limited to eight
hours, from nine to five; and to-day one may rest peacefully in a room
adjoining a polling booth and not be aware that an election is in progress. It was all very different in the
days of our grandfathers. Whiskey and the open vote were two very potent
factors in keeping up the excitement. Instead of having several booths
scattered throughout each township, there was only one in the electoral
district. The principal village in the district was generally selected, but
sometimes the only booth was set up in a country tavern, especially if it was
in a central location and the proprietor could pull enough political strings.
A platform was constructed out of rough boards and protected from the weather
by a sloping roof. On Monday morning of election week the candidates and
their henchmen assembled in the vicinity of the platform, which was known as
the hustings. The electors came pouring in
from all parts of the district. Each party had its headquarters at a tavern,
or tent, or both, where the workers would lay their plans. The forenoon was
spent in listening to the orators of the day, and at one o'clock the polling
began. It is easy to imagine what would happen to the doubtful voter when he
arrived at the village. As the poll was kept open all day and every day until
Saturday night, it is not quite so easy to picture the scenes during the last
day or two for a hot contest. Couriers with foaming horses were going and
coming. Heated discussions frequently terminated in a rough and tumble fight,
in which a score or more participated. Drunken men reeled about the streets
until carefully stowed away by their friends in a tent or in a stall in the
tavern stable. If the inebriate had not yet polled his vote, his whilom
friends were most solicitous in the attention bestowed upon him. It not infrequently happened
that the indifferent voter purposely played into the hands of both parties.
It was a golden opportunity for free lunches and free whiskey; and the longer
he deferred the fateful hour when he had to announce to the returning officer
the candidate of his choice, the more difficult it was for him to choose. In
his dilemma he would seek his solace in a little more whiskey, and, in the
end, perhaps vote for the wrong man. If unhappily he did make such a mistake,
his political guardians never failed to call his attention to the error in a
manner not likely soon to be forgotten - such incidents were thereafter
associated in the mind of the offender with unpleasant recollections of the
village pump or the nearest creek. Chapter 1 Chapter 2 Chapter
3 Chapter 5 Chapter 6 Chapter
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